AUREOS INDIA ADVISERS P.LTD, MUMBAI V. DCIT 10(1), MUMBAI

ITA 1000/MUM/2014

• Counselvise Citation: 100019914 RSA 2014
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-08-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 13-02-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH A BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER I.T.A. NO. 1000 /MUM/2014 ASSESSMENT YEAR : 2010-11 AUREOS INDIA ADVISERS PVT. LTD., OFFICE NO. 405, CEEJAY HOUSE, OFF SHIV SAGAR ESTATE, DR. A B ROAD, WORLI, MUMBAI - 400 0 18 . VS. DY. COMM OF INCOME TAX 10(1), AAYAKAR BHAVAN, 4 TH FLOOR, ROOM NO. 455, M.K. ROAD, MUMBAI 400 0 20 . PAN :AAFCA5909A (APPELLANT ) .. ( RESPONDENT ) ASSESS EE BY MS. MOKSHA MEHTA RESPONDENT BY : SHRI S.P. WALIMBE DATE OF HEARING : 28.7.2015 DATE OF PRONOUNCEMENT : 19.08.2015 O R D E R PER G.S. PANNU, AM : THIS APPEAL, FILED BY THE ASSESSEE, BEING ITA NO. 1 000/MUM/2014, IS DIRECTED AGAINST THE ORDER DATED 13-08-2013 PASSED BY THE LD. CIT(A) - 21, MUMBAI, FOR THE ASSESSMENT YEAR 2010-11. THE ASSES SEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-21 {CIT(A)} ERRED IN DISMISSING APPEAL ON THE BASIS THAT REPEATED OPPORTU NITY TO APPELLANT AND APPELLANT DOES NOT WANT TO PURSUE AND DEFEND THE CASE ON ACCOUNT OF FAILURE OF SERVICE OF THE NOTICE OF HEARING. CIT(A) FAILED TO A PPRECIATE BONAFIDE PROBLEM OF APPELLANT FOR USE OF OFFICE THUS APPELLANT PRAYS THAT APPEAL SHOULD BE RESTORED BACK TO THE CIT(A). 2. WITHOUT PREJUDICE TO ABOVE: ITA 1000/M/14 2 2.1 CIT (A) ERRED IN CONFIRMING DISALLOWANCE OF RS 21,67,880 OUT OF RENT EXPENSES ON THE BASIS OF CLERICAL ERROR OF ASSESSME NT YEAR IN CHALLAN AND ALLEGED NON PAYMENT OF TDS AND BE ALLOWED. 2.2 CIT (A) ERRED IN CONFIRMING. UNEXPLAINED ADDITIO N OF RS 21,900 AS PER SEE 154 ORDER OF CPC AND SO ADDITION BE DELETED. 2. IN BRIEF THE RELEVANT FACTS ARE THAT THE APPELL ANT IS ENGAGED IN THE BUSINESS OF INVESTMENT ADVISORY SERVICES AND FOR ASSESSMENT YEA R 2010-11, IT FILED RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.1,36,27,037/ -. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS SUBJECT TO SCRUTINY ASSESSMENT, WH EREIN THE TOTAL INCOME WAS ASSESSED AT RS.1,58,16,820/-, ON ACCOUNT OF DISALLO WANCE OF RS.21,67,880/- OUT OF RENT EXPENSES. THE RENT EXPENDITURE TO THE EXTENT OF RS.21,62,880/- WAS DISALLOWED ON THE GROUND THAT THE REQUISITE TDS CE RTIFICATES FOR DEDUCTION OF TAX AT SOURCE DID NOT PERTAIN TO THE CURRENT YEAR. THE E XPLANATION OF THE ASSESSEE THAT IT WAS AN INADVERTENT CLERICAL ERROR OF MENTIONING WR ONG DATES IN THE TDS CERTIFICATE WAS NOT ACCEPTED BY THE ASSESSING OFFICER. WHEN TH E ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE CIT(A), THE CIT(A) HAS DISMISSED THE APPEAL FOR WANT OF PROSECUTION BECAUSE THE NOTICES OF HEARING ISSUED BY HIM WERE FOUND TO HAVE BEEN RETURNED UNSERVED. 3. BEFORE US, THE PRELIMINARY PLEA OF THE ASSESSE EIS THAT THE HAS CIT(A) DISMISSED THE APPEAL IN CONTRAVENTION OF THE PROV ISIONS OF SECTION 250(6) OF THE ACT, WHICH READS AS UNDER:- THE ORDER OF THE COMMISSIONER (APPEALS) DISPOSING O F THE APPEAL SHALL BE IN WRITING AND SHALL STATE THE POINTS FOR DETERM INATION, THE DECISION THEREON AND THE REASON FOR THE DECISION. ACCORDINGLY, IT IS SUBMITTED THAT THE APPEAL BE RES TORED BACK TO THE FILE OF THE CIT(A) FOR ADJUDICATION ON MERIT. LD. REPRESENTATIVE FO R THE ASSESSEE EXPLAINED THAT FOR CERTAIN CIRCUMSTANCES BEYOND THE CONTROL OF THE ASS ESSEE, ASSESSEE COULD NOT RESPOND TO THE NOTICES OF HEARING ISSUED BY CIT(A) AND SUBMITTED THAT ASSESSEE WOULD BE SATISFIED IF THE MATTER IS RESTORED BACK T O THE FILE OF CIT(A) FOR ADJUDICATION ON MERITS. ITA 1000/M/14 3 4. LD. DR APPEARING FOR THE REVENUE HAS NOT CONTEST ED THE PRAYER OF THE ASSESSEE FOR REMANDING THE MATTER BACK TO THE FILE OF CIT(A). 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND PERU SING THE ORDER OF CIT(A), IT IS QUITE CONSPICUOUS THAT THE CIT(A) HAS PASSED THE IMPUGNED ORDER IN VIOLATION OF THE REQUIREMENT OF SUB-SECTION (6) OF SECTION 250 O F THE ACT. THE PROVISIONS OF SUB- SECTION (6) OF SECTION 250 OF THE ACT OBLIGATE THE CIT(A) TO DISPOSE OF AN APPEAL BY STATING THE POINTS FOR DETERMINATION, THE DECISION THEREON AND THE REASONS FOR THE DECISION. IN THE PRESENT CASE, CIT(A) HAS NOT DISP OSED OF THE APPEAL QUA THE GROUNDS OF APPEAL RAISED BEFORE HIM AND THE ATTENDA NT FACTS, BUT HAS DISMISSED THE APPEAL MERELY FOR WANT OF PROSECUTION NOTICING NON- RESPONSE OF THE ASSESSEE ON THE DATE OF HEARING. BE THAT IT MAY, WE DEEM IT FIT AN D PROPER TO HOLD THAT THE APPEAL OF THE ASSESSEE IS RESTORED BACK TO THE FILE OF CIT(A) FOR ADJUDICATION AFRESH ON MERITS. NEEDLESS TO MENTION, CIT(A) SHALL ALLOW THE ASSES SEE A REASONABLE OPPORTUNITY OF BEING HEARD BEFORE ADJUDICATING THE GROUNDS RAISED BY THE ASSESSEE ON MERITS AS PER LAW. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST, 2015. (SANJAY GARG) (G.S. PANNU ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ,DATED [ VM. ITA 1000/M/14 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A)- 21, MUMBAI 4. CIT- 10, MUMBAI 5. DR, ITAT, MUMBAI A BENCH 6. GUARD FILE . BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI